EXHIBIT 4.1
BANC OF AMERICA SECURITIES AUTO TRUST 2005-WF1
AMENDED AND RESTATED
TRUST AGREEMENT
BETWEEN
BAS SECURITIZATION LLC,
AS THE DEPOSITOR
AND
WILMINGTON TRUST COMPANY,
AS THE OWNER TRUSTEE
DATED AS OF JULY 7, 2005
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS....................................................1
SECTION 1.1. Capitalized Terms...........................................1
SECTION 1.2. Other Interpretive Provisions...............................1
ARTICLE II ORGANIZATION...................................................2
SECTION 2.1. Name........................................................2
SECTION 2.2. Office......................................................2
SECTION 2.3. Purposes and Powers.........................................2
SECTION 2.4. Appointment of the Owner Trustee............................3
SECTION 2.5. Initial Capital Contribution of Trust Estate................3
SECTION 2.6. Declaration of Trust........................................3
SECTION 2.7. Organizational Expenses; Liabilities of the Holders.........3
SECTION 2.8. Title to the Trust Estate...................................4
SECTION 2.9. Representations and Warranties of the Seller................4
SECTION 2.10. Situs of Issuer.............................................5
ARTICLE III RESIDUAL INTEREST AND TRANSFER OF CERTIFICATES.................5
SECTION 3.1. Initial Ownership...........................................5
SECTION 3.2. Authorization of the Certificates...........................5
SECTION 3.3. Form of the Certificate.....................................5
SECTION 3.4. Registration of the Certificates............................5
SECTION 3.5. Transfer of the Certificate.................................5
SECTION 3.6. Lost, Stolen, Mutilated or Destroyed Certificates...........7
ARTICLE IV ACTIONS BY OWNER TRUSTEE.......................................8
SECTION 4.1. Prior Notice to Residual Interestholder with Respect
to Certain Matters .........................................8
SECTION 4.2. Action by Residual Interestholder with Respect to
Certain Matters ............................................8
SECTION 4.3. Action by Residual Interestholder with Respect
to Bankruptcy ..............................................8
SECTION 4.4. Restrictions on Residual Interestholder's Power.............8
SECTION 4.5. Majority Control............................................9
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES......................9
SECTION 5.1. Application of Trust Funds...................................9
SECTION 5.2. Method of Payment............................................9
SECTION 5.3. Xxxxxxxx-Xxxxx Act...........................................9
SECTION 5.4. Accounting and Reports to Residual Interestholders,
the Internal Revenue Service and Others......................9
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE..........................10
SECTION 6.1. General Authority...........................................10
SECTION 6.2. General Duties..............................................10
SECTION 6.3. Action upon Instruction.....................................10
SECTION 6.4. No Duties Except as Specified in this Agreement or
in Instructions.............................................11
SECTION 6.5. No Action Except under Specified Documents or
Instructions................................................11
SECTION 6.6. Restrictions................................................11
SECTION 6.7. Administrative Duties.......................................12
ARTICLE VII CONCERNING OWNER TRUSTEE.......................................17
SECTION 7.1. Acceptance of Trusts and Duties.............................17
SECTION 7.2. Furnishing of Documents.....................................19
SECTION 7.3. Representations and Warranties..............................19
SECTION 7.4. Reliance; Advice of Counsel.................................20
SECTION 7.5. Not Acting in Individual Capacity...........................20
SECTION 7.6. The Owner Trustee May Own Notes.............................21
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE..................................21
SECTION 8.1. Owner Trustee's Fees and Expenses...........................21
SECTION 8.2. Indemnification.............................................21
SECTION 8.3. Payments to the Owner Trustee...............................21
ARTICLE IX TERMINATION OF TRUST AGREEMENT.................................22
SECTION 9.1. Termination of Trust Agreement..............................22
SECTION 9.2. Dissolution of the Issuer...................................22
SECTION 9.3. Limitations on Termination..................................22
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES........22
SECTION 10.1. Eligibility Requirements for the Owner Trustee.............22
SECTION 10.2. Resignation or Removal of the Owner Trustee................23
SECTION 10.3. Successor Owner Trustee....................................23
SECTION 10.4. Merger or Consolidation of the Owner Trustee...............24
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee..............24
ARTICLE XI MISCELLANEOUS.................................................25
SECTION 11.1. Amendments.................................................25
SECTION 11.2. No Legal Title to Trust Estate in Residual
Interestholder.............................................27
SECTION 11.3. Limitations on Rights of Others............................27
SECTION 11.4. Notices....................................................27
SECTION 11.5. Severability...............................................27
SECTION 11.6. Separate Counterparts......................................27
SECTION 11.7. Successors and Assigns.....................................27
SECTION 11.8. No Petition................................................28
SECTION 11.9. Information Request........................................29
SECTION 11.10. Headings...................................................29
SECTION 11.11. GOVERNING LAW..............................................29
EXHIBIT A FORM OF CERTIFICATE
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This AMENDED AND RESTATED
TRUST AGREEMENT is made as of July 7, 2005
(as from time to time amended, supplemented or otherwise modified and in effect,
this "Agreement") between BAS SECURITIZATION LLC, a
Delaware limited liability
company, as the depositor (the "Seller"), and WILMINGTON TRUST COMPANY, a
Delaware banking corporation, as the owner trustee (the "Owner Trustee").
RECITALS
WHEREAS, the Seller and the Owner Trustee entered into that certain
Trust Agreement dated as of May 18, 2005 (the "Original
Trust Agreement"),
pursuant to which the Issuer (as defined below) was created; and
WHEREAS, in connection with the issuance of the Notes, the parties have
agreed to amend and restate the Original
Trust Agreement;
NOW THEREFORE, IN CONSIDERATION of the mutual agreements herein
contained, and of other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Capitalized Terms. Unless otherwise indicated, capitalized
terms used in this Agreement are defined in Appendix A to the Sale Agreement
dated as of the date hereof (as from time to time amended, supplemented or
otherwise modified and in effect, the "Sale Agreement") between the Issuer and
the Seller, as the same may be amended, modified or supplemented from time to
time.
SECTION 1.2. Other Interpretive Provisions. All terms defined in this
Agreement shall have the defined meanings when used in any certificate or other
document delivered pursuant hereto unless otherwise defined therein. For
purposes of this Agreement and all such certificates and other documents, unless
the context otherwise requires: (a) accounting terms not otherwise defined in
this Agreement, and accounting terms partly defined in this Agreement to the
extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles; (b) terms defined in Article 9 of the
UCC as in effect in the State of
Delaware and not otherwise defined in this
Agreement are used as defined in that Article; (c) the words "hereof," "herein"
and "hereunder" and words of similar import refer to this Agreement as a whole
and not to any particular provision of this Agreement; (d) references to any
Article, Section, Schedule or Exhibit are references to Articles, Sections,
Schedules and Exhibits in or to this Agreement, and references to any paragraph,
subsection, clause or other subdivision within any Section or definition refer
to such paragraph, subsection, clause or other subdivision of such Section or
definition; (e) the term "including" means "including without limitation"; (f)
references to any law or regulation refer to that law or regulation as amended
from time to time and include any successor law or regulation; and (g)
references to any Person include that Person's successors and assigns.
ARTICLE II
ORGANIZATION
SECTION 2.1. Name. The trust created under the Original
Trust Agreement
shall be known as "
Banc of America Securities Auto Trust 2005-WF1" (the
"Issuer"), in which name the Owner Trustee may conduct the business of such
trust, make and execute contracts and other instruments on behalf of such trust
and xxx and be sued.
SECTION 2.2. Office. The office of the Issuer shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address as the
Owner Trustee may designate by written notice to the Residual Interestholder and
the Seller.
SECTION 2.3. Purposes and Powers. The purpose of the Issuer is, and the
Issuer shall have the power and authority, to engage in the following
activities:
(a) to issue the Notes pursuant to the Indenture and, if so
requested by the Residual Interestholder, to issue the Certificates,
pursuant to this Agreement, and to sell, transfer and exchange the
Notes and the Certificates and to pay interest on and principal of the
Notes and distributions to the Residual Interestholder;
(b) to issue the Revolving Liquidity Note pursuant to the
Revolving Liquidity Note Agreement;
(c) to acquire the property and assets set forth in the Sale
Agreement from the Seller pursuant to the terms thereof, to make
deposits to and withdrawals from the Collection Account, the Principal
Distribution Account and the Reserve Account and to pay the
organizational, start-up and transactional expenses of the Issuer;
(d) to assign, grant, transfer, pledge, mortgage and convey
the Trust Estate pursuant to the Indenture and to hold, manage and
distribute to the Residual Interestholder any portion of the Trust
Estate released from the lien of, and remitted to the Issuer pursuant
to, the Indenture;
(e) to enter into and perform its obligations under the
Transaction Documents to which it is a party;
(f) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(g) subject to compliance with the Transaction Documents, to
engage in such other activities as may be required in connection with
conservation of the Trust Estate and the making of distributions to the
Residual Interestholder and the Noteholders.
The Owner Trustee is hereby authorized to engage in the foregoing activities on
behalf of the Issuer. Neither the Issuer nor the Owner Trustee on behalf of the
Issuer shall engage in any
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activity other than in connection with the foregoing or other than as required
or authorized by the terms of this Agreement or the other Transaction Documents.
SECTION 2.4. Appointment of the Owner Trustee. The Seller hereby
appoints the Owner Trustee as trustee of the Issuer effective as of the date
hereof, to have all the rights, powers and duties set forth herein.
SECTION 2.5. Initial Capital Contribution of Trust Estate. As of the
date of the Original
Trust Agreement, the Seller sold, assigned, transferred,
conveyed and set over to the Owner Trustee the sum of $1. The Owner Trustee
hereby acknowledges receipt in trust from the Seller, as of such date, of the
foregoing contribution, which shall constitute the initial Trust Estate and
shall be deposited in the Collection Account.
SECTION 2.6. Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Trust Estate in trust upon and subject to the conditions
set forth herein for the use and benefit of the Residual Interestholder, subject
to the obligations of the Issuer under the Transaction Documents. It is the
intention of the parties hereto that the Issuer constitute a statutory trust
under the Statutory Trust Act and that this Agreement constitute the governing
instrument of such statutory trust. It is the intention of the parties hereto
that, solely for federal, state and local income and franchise tax purposes: (1)
if there is one beneficial owner of the Certificates, the Issuer shall be
treated as a disregarded entity, and (2) if there is more than one beneficial
owner of the Certificates, the Issuer shall be treated as a partnership for
income and franchise tax purposes, with the assets of the partnership being the
Receivables and other assets held by the Issuer, the partners of the partnership
being the Certificateholders, and the Notes and the Revolving Liquidity Note
being debt of the partnership. The parties agree that, unless otherwise required
by appropriate tax authorities, the Issuer will not file or cause to be filed
annual or other necessary returns, reports and other forms consistent with the
characterization of the Issuer as an entity separate from its owner. In the
event that the Issuer is deemed to have more than one beneficial owner for
federal income tax purposes, the Issuer will file returns, reports and other
forms consistent with the characterization of the Issuer as a partnership, and
this Agreement shall be amended to include such provisions as may be required
under Subchapter K of the Internal Revenue Code of 1986, as amended. Effective
as of the date hereof, the Owner Trustee shall have all rights, powers and
duties set forth herein and in the Statutory Trust Act with respect to
accomplishing the purposes of the Issuer. The Owner Trustee filed the
Certificate of Trust with the Secretary of State of the State of
Delaware as
required by Section 3810(a) of the Statutory Trust Act. Notwithstanding anything
herein or in the Statutory Trust Act to the contrary, it is the intention of the
parties hereto that the Issuer constitute a "business trust" within the meaning
of Section 101(9)(A)(v) of the Bankruptcy Code.
SECTION 2.7. Organizational Expenses; Liabilities of the Holders.
(a) The Seller shall pay organizational expenses of the Issuer
as they may arise, including, without limitation, the commitment fee to
the initial Holder of the Revolving Liquidity Note required to be paid
pursuant to Section 4.1 of the Revolving Liquidity Note Agreement.
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(b) No Residual Interestholder (including the Seller, if the
Seller is or becomes a Residual Interestholder) shall have any personal
liability for any liability or obligation of the Issuer.
SECTION 2.8. Title to the Trust Estate. Legal title to all the Trust
Estate shall be vested at all times in the Issuer as a separate legal entity.
SECTION 2.9. Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the Owner Trustee that:
(a) Existence and Power. The Seller is a
Delaware limited
liability company validly existing and in good standing under the laws
of the State of
Delaware and has, in all material respects, full power
and authority to own its assets and operate its business as presently
owned or operated, and to execute, deliver and perform its obligations
under the Transaction Documents to which it is a party. The Seller has
obtained all necessary licenses and approvals in all jurisdictions
where the failure to do so would materially and adversely affect the
ability of the Seller to perform its obligations under the Transaction
Documents and the Underwriting Agreement.
(b) Authorization and No Contravention. The execution,
delivery and performance by the Seller of each Transaction Document and
the Underwriting Agreement to which it is a party (i) have been duly
authorized by all necessary action on the part of the Seller and (ii)
do not violate or constitute a default under (A) any applicable law,
rule or regulation, (B) its organizational instruments or (C) any
material indenture or material agreement or instrument to which the
Seller is a party or by which its properties are bound (other than
violations of such laws, rules, regulations, indenture or agreements
which do not affect the legality, validity or enforceability of any of
such agreements and which, individually or in the aggregate, would not
materially and adversely affect the transactions contemplated by, or
the Seller's ability to perform its obligations under, the Transaction
Documents to which it is a party).
(c) No Consent Required. No approval, authorization or other
action by, or filing with, any Governmental Authority is required in
connection with the execution, delivery and performance by the Seller
of any Transaction Document other than UCC filings and other than (i)
approvals and authorizations that have previously been obtained and
filings which have previously been made and (ii) approvals,
authorizations or filings which, if not obtained or made, would not
have a material adverse effect on the ability of the Seller to perform
its obligations under the Underwriting Agreement or the Transaction
Documents to which it is a party.
(d) Binding Effect. Each of the Transaction Document to which
the Seller is a party and the Underwriting Agreement constitutes the
legal, valid and binding obligation of the Seller enforceable against
the Seller in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, receivership, conservatorship or other similar laws
affecting creditors' rights generally and, if applicable the rights of
creditors of limited liability companies from time to time in effect or
by general principles of equity or other similar laws of general
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application relating to or affecting the enforcement of creditors'
rights generally and subject to general principles of equity.
(e) No Proceedings. There are no actions, orders, suits or
proceedings pending or, to the knowledge of the Seller, threatened
against the Seller before or by any Governmental Authority that (i)
assert the invalidity or unenforceability of this Agreement or any of
the other Transaction Documents, (ii) seek to prevent the issuance of
the Notes or the consummation of any of the transactions contemplated
by this Agreement or any of the other Transaction Documents or (iii)
seek any determination or ruling that would materially and adversely
affect the performance by the Seller of its obligations under this
Agreement or any of the other Transaction Documents.
SECTION 2.10. Situs of Issuer. The Issuer shall be located and
administered in the State of
Delaware. All bank accounts maintained by the Owner
Trustee on behalf of the Issuer shall be located in the State of
Delaware or the
State of New York. The Issuer shall not have any employees in any state;
provided, however, that nothing herein shall restrict or prohibit the Owner
Trustee from having employees within or without the State of
Delaware. Payments
will be received by the Issuer only in
Delaware or New York and payments will be
made by the Issuer only from Delaware or New York.
ARTICLE III
RESIDUAL INTEREST AND TRANSFER OF CERTIFICATES
SECTION 3.1. Initial Ownership. Upon the formation of the Issuer by the
contribution of the Seller pursuant to Section 2.5 and until the issuance of the
Certificates, the Seller is the sole beneficiary of the Issuer.
SECTION 3.2. Authorization of the Certificates. On the Closing Date,
the Owner Trustee shall cause the Certificates to be executed on behalf of the
Issuer, authenticated and delivered to or upon the written order of the Seller,
signed by its chairman of the board, its president, its chief financial officer,
its chief accounting officer, any vice president, its secretary, any assistant
secretary, its treasurer or any assistant treasurer, without further corporate
action by the Seller. The Certificates shall represent 100% of the beneficial
interest in the Issuer and shall, to the fullest extent permitted by applicable
law, be fully paid and nonassessable.
SECTION 3.3. Form of the Certificate. Each Certificate, upon issuance,
will be issued in the form of a typewritten Certificate, substantially in the
form of Exhibit A hereto, representing a definitive Certificate and shall be
registered in the name of "Blue Ridge Investments, LLC" or its nominee as the
initial registered owner thereof.
SECTION 3.4. Registration of the Certificates. The Owner Trustee shall
maintain at its office referred to in Section 2.2, or at the office of any agent
appointed by it and approved in writing by the Residual Interestholder at the
time of such appointment, a register for the registration and transfer of any
Certificate.
SECTION 3.5. Transfer of the Certificate. (a) The Certificateholder may
assign, convey or otherwise transfer all or any of its right, title and interest
in the Certificate; provided,
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that (i) the Rating Agency Condition is satisfied, (ii) the Owner Trustee and
the Issuer receive an Opinion of Counsel stating that, in the opinion of such
counsel, such transfer will not cause the Issuer to be treated as a publicly
traded partnership for federal income tax purposes, and (iii) the Certificate
may not be acquired by or for the account of or with the assets of (a) an
employee benefit plan (as defined in Section 3(3) of ERISA) that is subject to
the provision of Title I of ERISA, (b) a plan described in Section 4975(e)(1) of
the Code or (c) any entity whose underlying assets include plan assets by reason
of an employee benefit plan's or other plan's investment in the entity. Subject
to the transfer restrictions contained herein and in the Certificate, the
Certificateholder may transfer all or any portion of the beneficial interest in
the Issuer evidenced by such Certificate upon surrender thereof to the Owner
Trustee accompanied by the documents required by this Section. Such transfer may
be made by the registered Certificateholder in person or by his attorney duly
authorized in writing upon surrender of the Certificate to the Owner Trustee
accompanied by a written instrument of transfer and with such signature
guarantees and evidence of authority of the Persons signing the instrument of
transfer as the Owner Trustee may reasonably require. Promptly upon the receipt
of such documents and receipt by the Owner Trustee of the transferor's
Certificate, the Owner Trustee shall record the name of such transferee as a
Certificateholder and its percentage of beneficial interest in the Issuer in the
Certificate register and issue, execute and deliver to such Certificateholder a
Certificate evidencing such beneficial interest in the Issuer. In the event a
transferor transfers only a portion of its beneficial interest in the Issuer,
the Owner Trustee shall register and issue, to such transferor a new Certificate
evidencing such transferor's new percentage of beneficial interest in the
issuer. Subsequent to a transfer and upon the issuance of the new Certificate or
Certificates, the Owner Trustee shall cancel and destroy the Certificate
surrendered to it in connection with such transfer. The Owner Trustee may treat
the Person in whose name any Certificate is registered as the sole owner of the
beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer
under this Section 3.5, the Owner Trustee may require the payment of a
sum sufficient to cover the payment of any tax or taxes or other
governmental charges required to be paid in connection with such
transfer.
(c) The Owner Trustee shall not be obligated to register any
transfer of a Certificate unless each of the transferor and the
transferee have certified to the Owner Trustee that such transfer does
not violate any of the transfer restrictions stated herein. The Owner
Trustee shall not be liable to any Person for registering any transfer
based on such certifications.
(d) Notwithstanding anything to the contrary in this
Agreement, no transfer (or purported transfer) of any Certificate (or
any economic interest therein, including any contract described in
Treasury Regulation Section 1.7704-1(a)(2)(i)(B)) shall be effective,
and any such transfer (or purported transfer) shall be void ab initio,
if after such transfer (or purported transfer) there would be more than
50 Certificateholders (where, for purposes of determining the number of
Certificateholders, a person (beneficial owner) owning an interest in a
partnership, grantor trust, or S corporation ("flow-through entity"),
that owns, directly or through other flow-through entities, an interest
in the Issuer, is treated as a Certificateholder if more than 50
percent of the value of such
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beneficial owner's interest in the flow-through entity is attributable
to the flow-through entity's interest (direct or indirect) in the
Issuer) or such transfer would otherwise cause the Issuer to become a
publicly traded partnership for U.S. federal income tax purposes;
(e) No transfer (or purported transfer) of a Certificate (or
economic interest therein), whether to another Certificateholder or to
a person who is not a Certificateholder, shall be effective, and any
such transfer (or purported transfer) shall be void ab initio, and no
person shall otherwise become a Certificateholder, and none of the
Issuer, the Owner Trustee or any of the Certificateholders will
recognize such transfer (or purported transfer), unless the transferee
has first represented and warranted in writing to the Issuer and the
Certificateholders that:
(i) it is acquiring the Certificates for its own
account and is the sole beneficial owner of such Certificates;
(ii) the transfer is not being effected on or through
(x) an "established securities market" within the meaning of
Section 7704(a)(1) of the Code, including without limitation,
an over-the-counter market or an interdealer quotation system
that regularly disseminates firm buy or sell quotations or (y)
a "secondary market" or "substantial equivalent thereof"
within the meaning of Section 7704(a)(2) of the Code and any
proposed, temporary or final Treasury regulations thereunder;
and
(iii) such transfer will not cause the Issuer to be
classified as a publicly traded partnership for U.S. federal
income tax purposes, and such purchaser or transferee will not
take any action, including any subsequent disposition of such
Certificates or economic interest therein, that would cause
the Issuer to be treated as a publicly traded partnership for
U.S. federal income tax purposes.
SECTION 3.6. Lost, Stolen, Mutilated or Destroyed Certificates. If (i)
any mutilated Certificate is surrendered to the Owner Trustee, or (ii) the Owner
Trustee receives evidence to its satisfaction that any Certificate has been
destroyed, lost or stolen, and upon proof of ownership satisfactory to the Owner
Trustee together with such security or indemnity as may be requested by the
Owner Trustee to save it harmless, the Owner Trustee shall execute and deliver a
new Certificate for the same percentage of beneficial interest in the Issuer as
the Certificate so mutilated, destroyed, lost or stolen, of like tenor and
bearing a different issue number, with such notations, if any, as the Owner
Trustee shall determine. Upon the issuance of any new Certificate under this
Section 3.6, the Issuer or Owner Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of the Certificate and any other
reasonable expenses (including the reasonable fees and expenses of the Issuer
and the Owner Trustee) connected therewith. Any duplicate Certificate issued
pursuant to this Section 3.6 shall constitute complete and indefeasible evidence
of ownership in the Issuer, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Residual Interestholder with Respect to
Certain Matters. With respect to the following matters, the Owner Trustee shall
not take action unless at least 30 days before the taking of such action, the
Owner Trustee shall have notified the Residual Interestholder in writing of the
proposed action and the Residual Interestholder shall not have notified the
Owner Trustee in writing prior to the 30th day after such notice is given that
the Residual Interestholder has withheld consent or provided alternative
direction:
(a) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is required;
(b) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is not required
and such amendment materially adversely affects the interests of the
Residual Interestholder;
(c) the amendment, change or modification of the Sale
Agreement or the Servicing Agreement, except to cure any ambiguity or
defect or to amend or supplement any provision in a manner that would
not materially adversely affect the interests of the Residual
Interestholder; or
(d) the appointment pursuant to the Indenture of a successor
Indenture Trustee or the consent to the assignment by the Note
Registrar or the Indenture Trustee of its obligations under the
Indenture or this Agreement, as applicable.
SECTION 4.2. Action by Residual Interestholder with Respect to Certain
Matters. The Owner Trustee shall not have the power, except upon the direction
of the Residual Interestholder, except as expressly provided in the Transaction
Documents, to sell the Collateral after the termination of the Indenture in
accordance with its terms. The Owner Trustee shall take the action referred to
in the preceding sentence only upon written instructions signed by the Residual
Interestholder.
SECTION 4.3. Action by Residual Interestholder with Respect to
Bankruptcy. The Owner Trustee shall not have the power to commence a voluntary
proceeding in bankruptcy relating to the Issuer until one year and one day after
the Outstanding Amount of all the Notes has been reduced to zero, and without
the prior written approval of the Residual Interestholder and the delivery to
the Owner Trustee by the Residual Interestholder of a certificate certifying
that the Residual Interestholder reasonably believes that the Issuer is
insolvent.
SECTION 4.4. Restrictions on Residual Interestholder's Power. The
Residual Interestholder shall not direct the Owner Trustee to take or refrain
from taking any action if such action or inaction would be contrary to any
obligation of the Issuer or the Owner Trustee under this Agreement or any of the
Transaction Documents or would be contrary to Section 2.3, nor shall the Owner
Trustee be obligated to follow any such direction, if given.
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SECTION 4.5. Majority Control. To the extent that there is more than
one Residual Interestholder, any action which may be taken or consent or
instructions which may be given by the Residual Interestholder under this
Agreement may be taken by Residual Interestholders holding in the aggregate a
percentage of the beneficial interest in the Issuer equal to more than 50% of
the beneficial interest in the Issuer at the time of such action.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Application of Trust Funds. Distributions on the Residual
Interest shall be made in accordance with the provisions of the Indenture.
Subject to the Lien of the Indenture, the Owner Trustee shall promptly
distribute to the Residual Interestholder all other amounts (if any) received by
the Issuer or the Owner Trustee in respect of the Trust Estate. After the
termination of the Indenture in accordance with its terms, the Owner Trustee
shall distribute all amounts received (if any) by the Issuer and the Owner
Trustee in respect of the Trust Estate at the direction of the Residual
Interestholder.
SECTION 5.2. Method of Payment. Subject to the Indenture, distributions
required to be made to the Residual Interestholder on any Payment Date and all
amounts received by the Issuer or the Owner Trustee on any other date that are
payable to the Residual Interestholder pursuant to this Agreement or any other
Transaction Document shall be made to the Residual Interestholder by wire
transfer, in immediately available funds, to the account of the Residual
Interestholder designated by the Residual Interestholder to the Owner Trustee
and Indenture Trustee in writing.
SECTION 5.3. Xxxxxxxx-Xxxxx Act. Notwithstanding anything to the
contrary herein or in any Transaction Document, the Owner Trustee shall not be
required to execute, deliver or certify in accordance with the provisions of the
Xxxxxxxx-Xxxxx Act on behalf of the Issuer or any other Person, any periodic
reports filed pursuant to the Exchange Act, or any other documents pursuant to
the Xxxxxxxx-Xxxxx Act.
SECTION 5.4. Accounting and Reports to Residual Interestholders, the
Internal Revenue Service and Others. The Owner Trustee shall (a) maintain (or
cause to be maintained) the books of the Issuer on a calendar year basis and the
accrual method of accounting, (b) deliver (or cause to delivered) to each
Residual Interestholder, as may be required by the Code and applicable Treasury
Regulations, such information as may be required (including Schedule K-1 if the
Issuer is treated as a partnership for federal income tax purposes) to enable
each Residual Interestholder to prepare its federal and state income tax
returns, (c) prepare (or cause to be prepared), file (or cause to be filed) such
tax returns relating to the Issuer (including a partnership information return,
IRS Form 1065 if the Issuer is treated as a partnership for federal income tax
purposes) and make such elections as from time to time may be required or
appropriate under any applicable state or federal statute or any rule or
regulation thereunder so as to maintain the Issuer's characterization, and (d)
cause such tax returns to be signed in the manner required by law. The Owner
Trustee shall elect under Section 1278 of the Code to include in income
currently any market discount that accrues with respect to the Receivables. The
Owner Trustee shall not make the election provided under Section 754 of the
Code.
9
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1. General Authority. The Owner Trustee is authorized and
directed to execute and deliver (i) the Transaction Documents to which the
Issuer is named as a party and (ii) each certificate or other document attached
as an exhibit to or contemplated by the Transaction Documents to which the
Issuer or the Owner Trustee is named as a party and any amendment thereto, in
each case, in such form as the Seller shall approve, as evidenced conclusively
by the Owner Trustee's execution thereof, and at the written direction of the
Seller, to direct the Indenture Trustee to authenticate and deliver Class A-1
Notes in the aggregate principal amount of $259,000,000, Class A-2 Notes in the
aggregate principal amount of $282,000,000, Class A-3 Notes in the aggregate
principal amount of $238,000,000, Class A-4 Notes in the aggregate principal
amount of $73,160,000, Class B Notes in the aggregate principal amount of
$17,800,000 and Class C Notes in the aggregate principal amount of $20,000,000
and to issue the Revolving Liquidity Note. In addition to the foregoing, the
Owner Trustee is authorized, but shall not be obligated, to take all actions
required of the Issuer pursuant to the Transaction Documents. The Owner Trustee
is further authorized from time to time to take such action as the Seller or the
Residual Interestholder recommends or directs in writing with respect to the
Transaction Documents, except to the extent that this Agreement expressly
requires the consent of the Residual Interestholder for such action.
SECTION 6.2. General Duties. It shall be the duty of the Owner Trustee
to discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the other Transaction Documents and to
administer the Issuer in the interest of the Residual Interestholder, subject to
Transaction Documents, and in accordance with the provisions of this Agreement.
The Owner Trustee shall have no obligation to administer, service or collect the
Receivables or to maintain, monitor or otherwise supervise the administration,
servicing or collection of the Receivables.
SECTION 6.3. Action upon Instruction. (a) Subject to Article IV, and in
accordance with the Transaction Documents, the Residual Interestholder may, by
written instruction, direct the Owner Trustee in the management of the Issuer.
Such direction may be exercised at any time by written instruction of the
Residual Interestholder pursuant to Article IV.
(b) Subject to Section 7.1, the Owner Trustee shall not be
required to take any action hereunder or under any Transaction Document
if the Owner Trustee shall have reasonably determined or been advised
by counsel that such action is likely to result in liability on the
part of the Owner Trustee or is contrary to the terms hereof or of any
Transaction Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of
this Agreement or any Transaction Document or is unsure as to the
application of any provision of this Agreement or any Transaction
Document or any such provision is ambiguous as to its application, or
is, or appears to be, in conflict with any other applicable provision,
or in the event that this Agreement permits any determination by the
Owner Trustee or is silent or is incomplete
10
as to the course of action that the Owner Trustee is required to take
with respect to a particular set of facts, the Owner Trustee shall
promptly give notice (in such form as shall be appropriate under the
circumstances) to the Residual Interestholder requesting instruction as
to the course of action to be adopted or application of such provision,
and to the extent the Owner Trustee acts or refrains from acting in
good faith in accordance with any written instruction of the Residual
Interestholder received, the Owner Trustee shall not be liable on
account of such action or inaction to any Person. If the Owner Trustee
shall not have received appropriate instruction within ten days of such
notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances)
it may, but shall be under no duty to, take or refrain from taking such
action, not inconsistent with this Agreement or the Transaction
Documents, as it shall deem to be in the best interests of the Residual
Interestholder, and shall have no liability to any Person for such
action or inaction.
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Issuer or the Owner Trustee is a party, except as expressly
provided by the terms of this Agreement or in any document or written
instruction received by the Owner Trustee pursuant to Section 6.3; and no
implied duties or obligations shall be read into this Agreement or any
Transaction Document against the Owner Trustee. The Owner Trustee shall have no
responsibility, other than as set forth in Section 6.7, for filing any financing
or continuation statement in any public office at any time or to otherwise
perfect or maintain the perfection of any security interest or Lien granted to
it hereunder or to prepare or file any Commission filing (including any filings
required under the Xxxxxxxx-Xxxxx Act) for the Issuer or to record this
Agreement or any Transaction Document. Wilmington Trust Company nevertheless
agrees that it will, at its own cost and expense, promptly take all action as
may be necessary to discharge any Liens on any part of the Trust Estate that
result from actions by, or claims against, Wilmington Trust Company that are not
related to the ownership or the administration of the Trust Estate.
SECTION 6.5. No Action Except under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Trust Estate except (i) in accordance
with the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Agreement, (ii) in accordance with the Transaction Documents
and (iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 6.3.
SECTION 6.6. Restrictions. The Owner Trustee shall not take any action
(a) that is inconsistent with the purposes of the Issuer set forth in Section
2.3 or (b) that, to the actual knowledge of a Responsible Officer of the Owner
Trustee, would (i) affect the treatment of the Notes as indebtedness for federal
income, state and local income and franchise tax purposes, (ii) be deemed to
cause a taxable exchange of the Notes for federal income or state income or
franchise tax purposes or (iii) cause the Issuer or any portion thereof to be
treated as an association or publicly traded partnership taxable as a
corporation for federal income, state and local income or franchise tax
purposes. The Residual Interestholder shall not direct the Owner Trustee to take
action that would violate the provisions of this Section.
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SECTION 6.7. Administrative Duties.
(a) The Owner Trustee shall prepare or shall cause the
preparation by other appropriate Persons (and such preparation shall not be the
responsibility of the Seller, the Depositor, the Indenture Trustee or the
Servicer) of all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Issuer to prepare, file or deliver
pursuant to the Indenture with respect to the following matters under the
Indenture, the Originator Purchase Agreement, the Sale Agreement, the Servicing
Agreement and the Revolving Liquidity Note Agreement:
(i) (x) the appointment of a successor Note Registrar
and (y) giving the Indenture Trustee notice of any appointment
of a new Note Registrar and the location, or change in
location, of the Note Registrar (Section 2.4 of the
Indenture);
(ii) the delivery for cancellation of any Note
delivered to the Issuer for cancellation, and the direction to
destroy or return such Note (Section 2.8 of the Indenture);
(iii) the preparation of Definitive Notes in
accordance with the instructions of the Clearing Agency
(Section 2.12 of the Indenture);
(iv) the designation of an office in the Borough of
Manhattan, City of New York, for registration of transfer or
exchange of Notes (Section 3.2 of the Indenture);
(v) the preparation of an Issuer Order directing the
Paying Agent to deposit with the Indenture Trustee all sums
held in trust by such Paying Agent (Sections 3.3 and 4.3 of
the Indenture);
(vi) upon actual knowledge, the preparation of an
Issuer Request directing the Indenture Trustee to provide
notification of any unclaimed monies and repayments (Section
3.3 of the Indenture);
(vii) upon request, assist in the obtaining and
preservation of the Issuer's qualification to do business in
each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of the
Indenture, the Notes, the Collateral and each other instrument
and agreement included in the Trust Property (Section 3.4 of
the Indenture);
(viii) upon request, the preparation of all
supplements and amendments to the Indenture, instruments of
further assurance and other instruments and the taking of such
other action as is necessary or advisable to protect the Trust
Estate, including the preparation and filing of any financing
statements and continuation statements (Section 3.5 of the
Indenture);
(ix) the delivery of the Opinion of Counsel on the
Closing Date and the annual delivery of Opinions of Counsel as
to the Trust Estate, and the annual
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delivery of the Officer's Certificate and certain other
statements as to compliance with the Indenture (Sections 3.6
and 3.9 of the Indenture);
(x) upon its actual knowledge, the delivery of
written notice to the Indenture Trustee and the Rating
Agencies of each Event of Default under the Indenture (Section
3.13 of the Indenture) and each default by the Servicer under
the Servicing Agreement;
(xi) upon request, the execution of any further
instruments and the performance of any acts reasonably
necessary to carry out more effectively the purpose of the
Indenture (Section 3.14 of the Indenture);
(xii) the monitoring of the Issuer's obligations as
to the satisfaction and discharge of the Indenture and the
preparation of an Officer's Certificate and the obtaining of
an Opinion of Counsel and the Independent Certificate relating
thereto (Section 4.1 of the Indenture);
(xiii) upon request, the preparation, obtaining or
filing of instruments, opinions, certificates and other
documents required for the release of Collateral (Section 2.9
of the Indenture);
(xiv) upon its actual knowledge of such, the delivery
to the Indenture Trustee of written notice in the form of an
Officer's Certificate of any event that with the giving of
notice and the lapse of time would become an Event of Default
under clause (c) or (d) of Section 5.1 of the Indenture
(Section 5.1 of the Indenture);
(xv) the performance of any lawful action as the
Indenture Trustee may request to compel or secure the
performance and observance (1) by the Seller of its
obligations to the Issuer under or in connection with the Sale
Agreement, (2) by the Servicer of the obligations to the
Issuer under or in connection with the Servicing Agreement,
(3) by the Seller or BANA, as applicable, of each of their
obligations under or in connection with the Purchase
Agreement, (4) by the Originator of its obligations to the
Issuer under or in connection with the Originator Purchase
Agreement or (5) the Holder of the Revolving Liquidity Note to
the Issuer under or in connection with the Revolving Liquidity
Note Agreement, in each case, in accordance with the terms
thereof, and to exercise any and all rights, remedies, powers
and privileges lawfully available to the Issuer under or in
connection with the Sale Agreement, the Servicing Agreement,
the Purchase Agreement, the Originator Purchase Agreement and
the Revolving Liquidity Note Agreement (Section 5.16 of the
Indenture);
(xvi) upon the request of the Indenture Trustee,
provide the Indenture Trustee with the information necessary
to deliver to each Noteholder such information as may be
reasonably requested to enable such Holder to prepare its
United States federal and state and local income or franchise
tax returns (Section 6.6 of the Indenture);
13
(xvii) the preparation and delivery of notice to
Noteholders of the removal of the Indenture Trustee and the
appointment of a successor Indenture Trustee (Section 6.8 of
the Indenture);
(xviii) the preparation of any written instruments
required to confirm more fully the authority of any co-trustee
or separate trustee and any written instructions necessary in
connection with the resignation or removal of any co-trustee
or separate trustee (Sections 6.8 and 6.10 of the Indenture);
(xix) upon request, the notification to the Indenture
Trustee if and when the Notes are listed on any stock exchange
(Section 7.3 of the Indenture);
(xx) upon request, the preparation of an Issuer Order
and Officer's Certificate and the obtaining of an Opinion of
Counsel and Independent Certificates, if necessary, for the
release of the Collateral (Sections 8.5 and 8.6 of the
Indenture);
(xxi) the preparation of Issuer Order and the
obtaining of Opinions of Counsel with respect to the execution
of supplemental indentures and the mailing to the Noteholders
of notices with respect to such supplemental indentures
(Sections 9.1, 9.2 and 9.3 of the Indenture);
(xxii) the delivery of new Notes conforming to any
supplemental indenture (Section 9.6 of the Indenture);
(xxiii) the duty to furnish to the Holder of the
Revolving Liquidity Note, Indenture Trustee and the Owner
Trustee notice of redemption of Notes (Section 10.1 of the
Indenture);
(xxiv) the duty to cause the Indenture Trustee to
provide notification to Noteholders of redemption of the Notes
(Section 10.2 of the Indenture);
(xxv) the preparation and delivery of all Officer's
Certificates, Opinions of Counsel and Independent Certificates
with respect to any requests by the Issuer to the Indenture
Trustee to take any action under the Indenture (Section 11.1
of the Indenture);
(xxvi) the preparation and delivery of all Officer's
Certificates and the obtaining of Independent Certificates, if
necessary, for the release of property from the lien of the
Indenture (Section 11.1 of the Indenture);
(xxvii) the preparation and delivery to the Indenture
Trustee, for further delivery to the Noteholders, of any
agreements or requests by the Noteholders with respect to
alternate payment and notice provisions (Section 11.6 of the
Indenture);
(xxviii) the recording of the Indenture, if
applicable (Section 11.16 of the Indenture);
14
(xxix) notification to the Certificateholders of the
substance of any amendment to the Sale Agreement and the
Servicing Agreement (Section 9.1(e) of the Sale Agreement and
Section 9.7 of the Indenture);
(xxx) preparation and filing of UCC continuation
statements and delivery of copies thereof (Section 3.4 of the
Purchase Agreement, Section 9.2 of the Sale Agreement and
Section 3.5 of the Indenture);
(xxxi) the execution and delivery to the Holder of
the Revolving Liquidity Note a physical certificate evidencing
the Revolving Liquidity Note (Section 3.1 of the Revolving
Liquidity Note Agreement);
(xxxii) the maintenance of a register, recording the
name and contact information for each Holder of the Revolving
Liquidity Note (Section 3.3 of the Revolving Liquidity Note
Agreement);
(xxxiii) upon request, the execution and delivery of
such instruments as necessary to mortgage, pledge, assign and
grant a security interest to the Indenture Trustee pursuant to
the Indenture for the benefit of the Noteholders of all right,
title and interest of the Issuer to and/or the assignment of
any or all of the Issuer's rights and obligations under the
Revolving Liquidity Note Agreement to the Indenture Trustee
(Section 4.2 of the Revolving Liquidity Note Agreement);
(xxxiv) upon actual knowledge or receipt of notice
thereof, notification to the Originator and to BANA or the
Seller, as applicable, of a breach of any of the
representations and warranties described in Section 3.2 of the
Purchase Agreement which materially and adversely affects the
interests of the Issuer or the Noteholders (Section 3.3
Purchase Agreement);
(xxxv) upon request, the execution and delivery of
such instruments of release, transfer or assignment as may be
reasonably requested by BANA to evidence the release, transfer
or assignment of any Receivable and related Purchased Asset
repurchased pursuant to Section 3.3 of the Purchase Agreement
(Section 3.3 of the Purchase Agreement);
(xxxvi) upon request, the filing in the proper filing
offices and delivery to the Seller of such financing
statements and continuation and other statements as may be
required to preserve, maintain and protect the interest of the
Issuer under the Purchase Agreement in the Receivables
(Section 3.4(a) of the Purchase Agreement);
(xxxvii) upon request, the preparation and delivery
of a written request to the Servicer for the release any
document in the Receivable Files (Section 2.2(b) of the
Servicing Agreement);
(xxxviii) upon request, the provision to the Servicer
of evidence of the assignment in trust for the benefit of the
Issuer, as applicable, as may be reasonably necessary for the
Servicer to participate in a legal proceeding relating
15
to or involving a Receivable of a Defaulted Receivable
(Section 3.1 of the Servicing Agreement);
(xxxix) upon request, the furnishing to the Servicer
any of powers of attorney and other documents and take any
other steps which the Servicer may deem necessary or
appropriate to enable the Servicer to carry out its servicing
and administrative duties under the Servicing Agreement
(Section 3.1 of the Servicing Agreement);
(xl) upon request, the preparation, execution and
delivery of such instruments as required to assign to the
Servicer all of the Issuer's right, title and interest in, to
and under a Receivable which the Servicer has repurchased
pursuant to Section 3.7 of the Servicing Agreement (Section
3.7 of the Servicing Agreement);
(xli) upon actual knowledge thereof, notification to
the Servicer of a breach of any of the covenants set forth in
Sections 3.5 and 3.6 of the Servicing Agreement that
materially and adversely affects the interest of the Issuer in
any Receivable (Section 3.7 of the Servicing Agreement);
(xlii) upon its actual knowledge of such, the
notification and delivery of a certificate to Xxxxx Fargo of
any indemnity amounts that are or will be owed to the Issuer
pursuant to Section 5.4 of the Originator Purchase Agreement
(Section 5.4(c) of the Originator Purchase Agreement);
(xliii) upon its actual knowledge thereof, the
notification to Xxxxx Fargo of a breach of any of the
covenants set forth in Section 3.2(q) of the Originator
Purchase Agreement that materially and adversely affects the
interest of the Issuer in any Receivable (Section 6.2 of the
Originator Purchase Agreement);
(xliv) with respect to all Receivables repurchased
pursuant to the Originator Purchase Agreement, upon request,
the preparation of any written instruments required to assign
to Xxxxx Fargo any such Receivable to be repurchased,
(Sections 6.2 and 6.3 of the Originator Purchase Agreement);
(xlv) upon actual knowledge thereof, notification to
the Seller and the Originator of a breach of any of the
representations and warranties described in Section 2.2 of the
Sale Agreement which materially and adversely affects the
interests of the Issuer or the Noteholders (Section 2.3 Sale
Agreement);
(xlvi) upon request, the execution and delivery of
such instruments of release, transfer or assignment as may be
reasonably requested by the Seller to evidence the release,
transfer or assignment of any Receivable and related
Transferred Assets repurchased pursuant to Section 2.3 of the
Sale Agreement (Section 2.3 of the Sale Agreement); and
(xlvii) upon request, the provision of any
information in the possession of the Owner Trustee reasonably
requested by the Servicer, the Issuer, the Seller or
16
any of their Affiliates, in order to comply with or obtain
more favorable treatment under any current or future law,
rule, regulation, accounting rule or principle (Section 9.5 of
the Sale Agreement).
(b) The Owner Trustee shall receive as compensation for its
services hereunder such fees as have been separately agreed upon before
the date hereof among the Depositor and the Owner Trustee, and the
Owner Trustee shall be reimbursed for its other reasonable expenses
hereunder in the priority set forth in Section 8.4 of the Indenture. In
performing its duties under Section 5.4 or 6.7, the Owner Trustee shall
be entitled to the indemnification provided by the Issuer under Section
8.2 of this Agreement, in the priority set forth in Section 8.2(c) of
the Indenture.
(c) It is understood and agreed that the Owner Trustee shall
be entitled to engage outside counsel, independent accountants and
other experts to assist the Owner Trustee in connection with the
performance of its duties set forth in Sections 5.4 and 6.7, including
the preparation of all tax reports and returns, securities law filings,
Opinions of Counsel and Independent Certificates and the Owner Trustee
shall be reimbursed for the expenses of such counsel, accountants and
experts in accordance with the priority set forth in Section 8.4 of the
Indenture. The Owner Trustee shall not be obligated to engage any
counsel, accountant or expert or perform any duty as required under
this Sections 5.4 and 6.7 for which reimbursement would exceed $1,000
until such amount has been paid to the Owner Trustee, if payment of
such reimbursable amount is required of the Owner Trustee prior to the
next Payment Date.
(d) The Depositor and the Indenture Trustee shall furnish to
the Owner Trustee from time to time such additional information
regarding the Issuer or the Transaction Documents as the Owner Trustee
shall reasonably request. The Indenture Trustee shall furnish to the
Owner Trustee upon request a copy of the Note Register.
(e) The Owner Trustee shall not be responsible for taking any
action with respect to this Section 6.7 unless a Responsible Officer in
the Corporate Trust Administration Department of the Owner Trustee has
actual knowledge or has received written notice of the need to take
such action.
(f) The rights and protections afforded to the Owner Trustee
pursuant to Article VII of this Agreement shall also be afforded to the
Owner Trustee with respect to the performance of its administrative
duties under this Section 6.7.
ARTICLE VII
CONCERNING OWNER TRUSTEE
SECTION 7.1. Acceptance of Trusts and Duties. The Owner Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all moneys actually received by it constituting
part of the Trust Estate upon the terms of the Transaction Documents and this
Agreement. The Owner Trustee shall not be personally liable or
17
accountable hereunder or under any Transaction Document under any circumstances
notwithstanding anything herein or in the Transaction Documents to the contrary,
except (i) for its own willful misconduct, bad faith or gross negligence, (ii)
in the case of the inaccuracy of any representation or warranty contained in
Section 7.3 expressly made by Wilmington Trust Company in its individual
capacity, (iii) for liabilities arising from the failure of Wilmington Trust
Company to perform obligations expressly undertaken by it in the last sentence
of Section 6.4 or (iv) for taxes, fees or other charges on, based on or measured
by, any fees, commissions or compensation received by the Owner Trustee. In
particular, but not by way of limitation (and subject to the exemptions set
forth in the preceding sentence):
(a) The Owner Trustee shall not be liable for any error of
judgment made in good faith by any officer of the Owner Trustee.
(b) Under no circumstances shall the Owner Trustee be
personally liable hereunder for any indebtedness of the Issuer.
(c) The Owner Trustee shall not be personally liable for the
payment of any tax imposed on the Issuer or amounts that are includable
in the federal gross income of the Residual Interestholder.
(d) No provision of this Agreement shall require the Owner
Trustee to expend or risk funds or otherwise incur any financial
liability in the performance of any of the Owner Trustee's duties or
powers hereunder, if the Owner Trustee believes or is advised by its
legal counsel that repayment of such funds or adequate indemnity
against such risk or liability is not assured or provided to its
reasonable satisfaction.
(e) Under no circumstance shall the Owner Trustee be liable
for any representation, warranty, covenant, or obligation or
indebtedness of the Issuer hereunder or under the Transaction Documents
or any other agreement, document or certificate contemplated by the
foregoing, including the obligations of the Issuer under the Revolving
Liquidity Note.
(f) The Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by the Indenture Trustee, the
Servicer or the Holder of the Revolving Liquidity Note and the Owner
Trustee shall not be liable for performing or supervising the
performance of any obligations or duties under this Agreement, the Sale
Agreement, the Servicing Agreement, the Indenture or the Revolving
Liquidity Note Agreement, or under any other document contemplated
hereby or thereby, which are to be performed by the Indenture Trustee,
the Servicer or the Holder of the Revolving Liquidity Note or any other
Person under such documents.
(g) The Owner Trustee shall not be responsible for or in
respect of the recitals herein, the validity or sufficiency of this
Agreement, or for the due execution hereof by the Seller or for the
form, character, genuineness, sufficiency, value or validity of any of
the Trust Estate or for or in respect of the validity or sufficiency of
the Transaction Documents or any other document contemplated thereby to
which the Owner Trustee is not a party.
18
(h) Notwithstanding anything contained herein or in any of the
Transaction Documents to the contrary, the Owner Trustee shall not be
required to take any action in any jurisdiction other than in the State
of Delaware if the taking of such action will (i) require the consent
or approval or authorization or order of or the giving of notice to, or
the registration with or taking of any action in respect of, any state
or other governmental authority or agency of any jurisdiction other
than the State of Delaware; (ii) result in any fee, tax or other
governmental charge under the laws of any jurisdiction or any political
subdivisions thereof in existence on the date hereof other than the
State of Delaware becoming payable by the Owner Trustee; or (iii)
subject the Owner Trustee to personal jurisdiction in any jurisdiction
other than the State of Delaware for causes of action arising from acts
unrelated to the consummation of the transactions by the Owner Trustee
contemplated hereby.
(i) The Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the
instructions of the Residual Interestholder or the Servicer.
(j) The Owner Trustee shall be under no duty to exercise any
of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement or any Transaction Document,
at the request, order or written direction of the Residual
Interestholder, unless such Residual Interestholder has offered to
provide to the Owner Trustee, to the extent requested by the Owner
Trustee, security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred by the Owner Trustee
therein or thereby. The right of the Owner Trustee to perform any
discretionary act enumerated in this Agreement or in any Transaction
Document shall not be answerable for other than its gross negligence,
bad faith or willful misconduct in the performance of any such act.
(k) All funds deposited with the Owner Trustee hereunder may
be held in a non-interest bearing account and the Owner Trustee shall
not be liable for any interest thereon or for any loss as a result of
the investment thereof at the direction of the Residual Interestholder.
SECTION 7.2. Furnishing of Documents. The Owner Trustee shall furnish
to the Residual Interestholder promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Transaction Documents.
SECTION 7.3. Representations and Warranties. Wilmington Trust Company
hereby represents and warrants to the Seller for the benefit of the Residual
Interestholder, that:
(a) It is a banking corporation duly incorporated and validly
existing in good standing under the laws of Delaware and having an
office within the State of Delaware. It has all requisite corporate
power and authority to execute, deliver and perform its obligations
under this Agreement.
19
(b) It has taken all corporate action necessary to authorize
the execution and delivery by it of this Agreement, and this Agreement
will be executed and delivered by one of its officers who is duly
authorized to execute and deliver this Agreement on its behalf.
(c) This Agreement constitutes a legal, valid and binding
obligation of the Owner Trustee, enforceable against the Owner Trustee
in accordance with its terms, subject, as to enforceability, to
applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation and other similar laws affecting enforcement
of the rights of creditors of banks generally and to equitable
limitations on the availability of specific remedies.
(d) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will contravene any federal or Delaware law, governmental rule or
regulation governing the banking or trust powers of the Owner Trustee
or any judgment or order binding on it, or constitute any default under
its charter documents or by-laws.
SECTION 7.4. Reliance; Advice of Counsel. (a) The Owner Trustee shall
incur no personal liability to anyone in acting upon any signature, instrument,
notice, resolution, request, consent, order, certificate, report, opinion, bond
or other document or paper believed by it to be genuine and believed by it to be
signed by the proper party or parties. The Owner Trustee may accept a certified
copy of a resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the method of the determination of which is not specifically
prescribed herein, the Owner Trustee may for all purposes hereof rely on a
certificate, signed by the president or any vice president or by the treasurer,
secretary or other Authorized Officers of the relevant party, as to such fact or
matter, and such certificate shall constitute full protection to the Owner
Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In the exercise or administration of the trusts hereunder
and in the performance of its duties and obligations under this
Agreement or the Transaction Documents, the Owner Trustee (i) may act
directly or, at the expense of the issuer, through its agents or
attorneys pursuant to agreements entered into with any of them, but the
Owner Trustee shall not be personally liable for the conduct or
misconduct of such agents, custodians, nominees (including persons
acting under a power of attorney) or attorneys selected with reasonable
care and (ii) may, at the expense of the issuer, consult with counsel,
accountants and other skilled persons knowledgeable in the relevant
area to be selected with reasonable care and employed by it at the
expense of the Issuer. The Owner Trustee shall not be personally liable
for anything done, suffered or omitted in good faith by it in
accordance with the written opinion or advice of any such counsel,
accountants or other such persons.
SECTION 7.5. Not Acting in Individual Capacity. Except as provided in
this Article VII, in accepting the trusts hereby created, Wilmington Trust
Company acts solely as the Owner
20
Trustee hereunder and not in its individual capacity and all Persons having any
claim against the Owner Trustee by reason of the transactions contemplated by
this Agreement or any Transaction Document shall look only to the Trust Estate
for payment or satisfaction thereof.
SECTION 7.6. The Owner Trustee May Own Notes. The Owner Trustee in its
individual or any other capacity may become the owner or pledgee of Notes. The
Owner Trustee may deal with the Seller, the Indenture Trustee and their
respective Affiliates in banking transactions with the same rights as it would
have if it were not the Owner Trustee, and the Seller, the Indenture Trustee and
their respective Affiliates may maintain normal commercial banking relationships
with the Owner Trustee and its Affiliates.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.1. Owner Trustee's Fees and Expenses. The Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Seller and the Owner
Trustee, and the Owner Trustee shall be reimbursed for its other reasonable
expenses hereunder, including the reasonable compensation, expenses and
disbursements of such agents, representatives, experts and counsel as the Owner
Trustee may employ in connection with the exercise and performance of its rights
and its duties hereunder, in the priority set forth in Sections 5.4 and 8.4 of
the Indenture.
SECTION 8.2. Indemnification. The Issuer shall indemnify the Owner
Trustee, Xxxxx Fargo and their respective successors, assigns, agents and
servants (collectively, the "Indemnified Parties") from and against, any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits, and
any and all reasonable costs, expenses and disbursements (including reasonable
legal fees and expenses) of any kind and nature whatsoever (collectively,
"Expenses") which may at any time be imposed on, incurred by, or asserted
against the Owner Trustee, or any Indemnified Party in any way relating to or
arising out of this Agreement, the Transaction Documents, the Trust Estate, the
administration of the Trust Estate or the action or inaction of the Owner
Trustee hereunder, except only that the Issuer shall not be liable for or
required to indemnify an Indemnified Party from or against Expenses arising or
resulting from (i) the willful misconduct, gross negligence or bad faith of the
Owner Trustee or (ii) the inaccuracy of a representation or warranty made by the
Owner Trustee in Section 7.3. The indemnities contained in this Section shall
survive the resignation or termination of the Owner Trustee or the termination
of this Agreement. In the event of any claim, action or proceeding for which
indemnity will be sought pursuant to this Section, the Indemnified Party's
choice of legal counsel shall be subject to the approval of the Issuer, which
approval shall not be unreasonably withheld. When the Owner Trustee incurs
expenses after the occurrence of an Event of Default under Sections 5.1(e) and
5.1(f) of the Indenture, the expenses are intended to constitute expenses of
administration under the Bankruptcy Code or any applicable federal or state
bankruptcy, insolvency or similar law.
SECTION 8.3. Payments to the Owner Trustee. Any amounts paid pursuant
to this Article VIII and the Sale Agreement shall be deemed not to be a part of
the Trust Estate immediately after such payment.
21
ARTICLE IX
TERMINATION OF
TRUST AGREEMENT
SECTION 9.1. Termination of Trust Agreement. The Issuer shall wind-up
and dissolve, and this Agreement (other than Article VIII) shall terminate, upon
the later of (a) the final distribution by the Owner Trustee of all moneys or
other property or proceeds of the Trust Estate in accordance with the terms of
the Indenture and Article V and (b) the discharge of the Indenture in accordance
with Article IV of the Indenture. The bankruptcy, liquidation, dissolution,
death or incapacity of the Residual Interestholder shall not (x) operate to
terminate this Agreement or the Issuer, nor (y) entitle the Residual
Interestholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of all
or any part of the Issuer or Trust Estate nor (z) otherwise affect the rights,
obligations and liabilities of the parties hereto.
SECTION 9.2. Dissolution of the Issuer. Upon dissolution of the Issuer,
the Owner Trustee shall wind up the business and affairs of the Issuer as
required by Section 3808 of the Statutory Trust Act. Upon the satisfaction and
discharge of the Indenture, and receipt of a certificate from the Indenture
Trustee stating that all Noteholders have been paid in full and that the
Indenture Trustee is aware of no claims remaining against the Issuer in respect
of the Indenture and the Notes, the Owner Trustee, in the absence of actual
knowledge of any other claim against the Issuer and at the written direction of
the Residual Interestholder, shall be deemed to have made reasonable provision
to pay all claims and obligations (including conditional, contingent or
unmatured obligations) for purposes of Section 3808(e) of the Statutory Trust
Act and shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Delaware Secretary of State in accordance
with the provisions of Section 3810 of the Statutory Trust Act, at which time
the Issuer shall terminate and this Agreement (other than Article VIII) shall be
of no further force or effect.
SECTION 9.3. Limitations on Termination. Except as provided in Section
9.1, neither the Seller nor the Residual Interestholder shall be entitled to
revoke or terminate the Issuer.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL
OWNER TRUSTEES
SECTION 10.1. Eligibility Requirements for the Owner Trustee. The Owner
Trustee shall at all times be a bank (i) authorized to exercise corporate trust
powers, (ii) having a combined capital and surplus of at least $50,000,000 and
(iii) subject to supervision or examination by Federal or state authorities. If
such bank shall publish reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority, then
for the purpose of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. The Owner Trustee shall at
all times be an institution satisfying the provisions of Section 3807(a) of the
Statutory Trust Act. In case at any time the Owner
22
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Owner Trustee shall resign immediately in the manner and with the
effect specified in Section 10.2.
SECTION 10.2. Resignation or Removal of the Owner Trustee. The Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Seller, the Servicer, the Indenture
Trustee and the Residual Interestholder. Upon receiving such notice of
resignation, the Seller shall promptly appoint a successor Owner Trustee which
satisfies the eligibility requirements set forth in Section 10.1 by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Owner Trustee and one copy to the successor Owner Trustee. If no
successor Owner Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Owner Trustee may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee; provided, however, that such right to
appoint or to petition for the appointment of any such successor shall in no
event relieve the resigning Owner Trustee from any obligations otherwise imposed
on it under the Transaction Documents until such successor has in fact assumed
such appointment.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.1 and shall fail to resign after
written request therefor by the Seller or if at any time the Owner Trustee shall
be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Seller may remove the Owner Trustee. If the Seller shall
remove the Owner Trustee under the authority of the immediately preceding
sentence, the Seller shall promptly appoint a successor Owner Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
outgoing Owner Trustee so removed and one copy to the successor Owner Trustee
and shall pay all fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.3 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Seller shall provide (or shall cause to be
provided) notice of such resignation or removal of the Owner Trustee to each of
the Rating Agencies.
SECTION 10.3. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.2 shall execute, acknowledge and deliver to the
Seller and to its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Owner Trustee shall become effective and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor under
this Agreement, with like effect as if originally named as the Owner Trustee.
The predecessor Owner Trustee shall upon payment of its fees and expenses
deliver to the successor Owner Trustee all documents and statements and monies
held by it under this Agreement; and the Seller and the predecessor Owner
Trustee shall execute and deliver such instruments and do such other
23
things as may reasonably be required for fully and certainly vesting and
confirming in the successor Owner Trustee all such rights, powers, duties and
obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Seller shall mail (or shall cause to be mailed) notice of the
successor of such Owner Trustee to the Residual Interestholder, Indenture
Trustee, the Noteholders and each of the Rating Agencies. If the Seller shall
fail to mail (or cause to be mailed) such notice within 10 days after acceptance
of appointment by the successor Owner Trustee, the successor Owner Trustee shall
cause such notice to be mailed at the expense of the Seller.
Any successor Owner Trustee appointed pursuant to this Section 10.3
shall promptly file an amendment to the Certificate of Trust with the Secretary
of State identifying the name and principal place of business of such successor
Owner Trustee in the State of Delaware.
SECTION 10.4. Merger or Consolidation of the Owner Trustee. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall, without the execution or filing of any
instrument or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding, be the successor of the Owner Trustee
hereunder; provided that such corporation shall be eligible pursuant to Section
10.1; and provided further that the Owner Trustee shall file an amendment to the
Certificate of Trust of the Issuer, if required by applicable law, and mail
notice of such merger or consolidation to the Seller and the Rating Agencies.
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Estate may at the time be located, the Seller and the Owner Trustee
acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Owner Trustee to act
as co-trustee, jointly with the Owner Trustee, or separate trustee or separate
trustees, of all or any part of the Trust Estate, and to vest in such Person, in
such capacity, such title to the Issuer, or any part thereof, and, subject to
the other provisions of this Section, such powers, duties, obligations, rights
and trusts as the Seller and the Owner Trustee may consider necessary or
desirable. If the Seller shall not have joined in such appointment within 15
days after the receipt by it of a request so to do, the Owner Trustee alone
shall have the power to make such appointment. No co-trustee or separate trustee
under this Agreement shall be required to meet the terms of eligibility as a
successor trustee pursuant to Section 10.1 and no notice of the appointment of
any co-trustee or separate trustee shall be required pursuant to Section 10.3.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
24
(i) all rights, powers, duties and obligations
conferred or imposed upon the Owner Trustee shall be conferred
upon and exercised or performed by the Owner Trustee and such
separate trustee or co-trustee jointly (it being understood
that such separate trustee or co-trustee is not authorized to
act separately without the Owner Trustee joining in such act),
except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed, the
Owner Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Issuer
or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be
personally liable by reason of any act or omission of any
other trustee under this Agreement; and
(iii) the Seller and the Owner Trustee acting jointly
may at any time accept the resignation of or remove any
separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee. The Owner Trustee shall have no obligation to determine
whether a co-trustee or separate trustee is legally required in any jurisdiction
in which any part of the Trust Estate may be located.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Amendments.
(a) Any term or provision of this Agreement may be amended by
the Seller and the Owner Trustee with prior notice to each Rating
Agency but without the consent of the Indenture Trustee, any
Noteholder, the Holder of the Revolving Liquidity Note or the Issuer;
provided that such amendment shall not, as evidenced by an Officer's
Certificate
25
of the Depositor delivered to the Indenture Trustee and the Owner
Trustee materially and adversely affect the interests of the
Noteholders or the Holder of the Revolving Liquidity Note; provided,
further, any amendment entered into pursuant to this Section 11.1(a)
shall not significantly change the permitted activities of the Issuer.
(b) Any term or provision of this Agreement may be amended by
the Seller and the Owner Trustee, with prior notice to each Rating
Agency but without the consent of the Indenture Trustee, any
Noteholder, the Holder of the Revolving Liquidity Note, the Issuer or
any other Person to add, modify or eliminate any provisions as may be
necessary or advisable in order to enable the Seller, the Owner Trustee
or any of their Affiliates to comply with or obtain more favorable
treatment under any law or regulation or any accounting rule or
principle, provided that such amendment shall not, as evidenced by an
Officer's Certificate of the Depositor delivered to the Indenture
Trustee, materially and adversely affect the interests of the
Noteholders or the Holder of the Revolving Liquidity Note; provided,
further, that the Rating Agency Condition with respect to Standard &
Poor's shall have been satisfied; provided, further, that any amendment
entered into pursuant to this Section 11.1(b) shall not significantly
change the permitted activities of the Issuer.
(c) This Agreement may also be amended from time to time by
the Seller and the Owner Trustee, with prior notice to each Rating
Agency and with the consent of the Holders of a majority of the Note
Balance of the Controlling Class and, if the interests of the Holder of
the Revolving Liquidity Note are affected, the Holder of the Revolving
Liquidity Note, for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Noteholders. It will not
be necessary to obtain the consent of the Noteholders or the Holder of
the Revolving Liquidity Note to approve the particular form of any
proposed amendment or consent, but it will be sufficient if such
consent approves the substance thereof. The manner of obtaining such
consents (and any other consents of Noteholders provided for in this
Agreement) and of evidencing the authorization of the execution thereof
by Noteholders and the Holder of the Revolving Liquidity Note, as
applicable will be subject to such reasonable requirements as the
Indenture Trustee may prescribe, including the establishment of record
dates pursuant to the Note Depository Agreement.
(d) Prior to the execution of any such amendment, the Seller
shall provide written notification of the substance of such amendment
to each Rating Agency and the Owner Trustee; and promptly after the
execution of any such amendment or consent, the Seller shall furnish a
copy of such amendment or consent to each Rating Agency, the Owner
Trustee and the Indenture Trustee.
(e) Prior to the execution of any amendment to this Agreement,
the Owner Trustee shall be entitled to receive and conclusively rely
upon an Opinion of Counsel stating that the execution of such amendment
is authorized or permitted by this Agreement and that all conditions
precedent to the execution and delivery of such amendment have been
satisfied. The Owner Trustee may, but shall not be obligated to,
26
enter into any such amendment which affects the Owner Trustee's own
rights, duties or immunities under this Agreement.
SECTION 11.2. No Legal Title to Trust Estate in Residual
Interestholder. The Residual Interestholder shall not have legal title to any
part of the Trust Estate. The Residual Interestholder shall be entitled to
receive distributions with respect to its undivided beneficial interest therein
only in accordance with Articles V and IX. No transfer, by operation of law or
otherwise, of any right, title or interest of the Residual Interestholder to and
in its ownership interest in the Trust Estate shall operate to terminate this
Agreement or the trusts hereunder or entitle any transferee to an accounting or
to the transfer to it of legal title to any part of the Trust Estate.
SECTION 11.3. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Seller, the
Residual Interestholder and, to the extent expressly provided herein, the
Indenture Trustee, the Noteholders and the Holder of the Revolving Liquidity
Note, and nothing in this Agreement, whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
claim in the Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
SECTION 11.4. Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given by telecopy with receipt acknowledged by the recipient thereof or
upon receipt personally delivered, delivered by overnight courier or mailed
certified mail, return receipt requested or via Electronic Transmission, if to
the Owner Trustee, addressed as specified on Schedule II to the Sale Agreement;
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party.
(b) Any notice required or permitted to be given to a Residual
Interestholder shall be given by first-class mail, postage prepaid, at
the address of such Residual Interestholder as shall be designated by
such party in a written notice to each other party. Any notice so
mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Residual Interestholder receives such notice.
SECTION 11.5. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 11.6. Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.7. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the Seller,
the Owner Trustee and its
27
successors and the Residual Interestholder and its successors and permitted
assigns, all as herein provided. Any request, notice, direction, consent, waiver
or other instrument or action by the Residual Interestholder shall bind the
successors and assigns of the Residual Interestholder.
SECTION 11.8. No Petition.
(a) Each of the Owner Trustee (in its individual capacity and
as the Owner Trustee), by entering into this Agreement, the Seller, the
Residual Interestholder, by accepting the Residual Interest, and the
Indenture Trustee and each Noteholder, the Holder of the Revolving
Liquidity Note or Note Owner by accepting the benefits of this
Agreement, hereby covenants and agrees that prior to the date which is
one year and one day after payment in full of all obligations of each
Bankruptcy Remote Party in respect of all securities issued by the
Bankruptcy Remote Parties (i) such party shall not authorize any
Bankruptcy Remote Party to commence a voluntary winding-up or other
voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to such Bankruptcy Remote Party or its
debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect in any jurisdiction or seeking the appointment of
an administrator, a trustee, receiver, liquidator, custodian or other
similar official with respect to such Bankruptcy Remote Party or any
substantial part of its property or to consent to any such relief or to
the appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against such Bankruptcy
Remote Party, or to make a general assignment for the benefit of, its
creditors generally, any party hereto or any other creditor of such
Bankruptcy Remote Party, and (ii) such party shall not commence, join
or institute against, with any other Person, any proceeding against
such Bankruptcy Remote Party under any bankruptcy, reorganization,
arrangement, liquidation or insolvency law or statute now or hereafter
in effect in any jurisdiction; provided, that, notwithstanding the
foregoing, Bankruptcy Remote Party shall not be prohibited from filing
a voluntary bankruptcy petition to the extent such Bankruptcy Remote
Party obtains the necessary vote for filing a voluntary bankruptcy
petition as required by the organizational documents of such Bankruptcy
Remote Party. Without limiting the foregoing, in no event shall the
Owner Trustee authorize, institute or join in any bankruptcy or similar
proceeding described in the preceding sentence without the prior
written approval of the Residual Interestholder and the delivery to the
Owner Trustee of a certificate certifying that the Residual
Interestholder reasonably believes that the Issuer is insolvent.
(b) The Seller's obligations under this Agreement are
obligations solely of the Seller and will not constitute a claim
against the Seller to the extent that the Seller does not have funds
sufficient to make payment of such obligations. In furtherance of and
not in derogation of the foregoing, each of the Owner Trustee (in its
individual capacity and as the Owner Trustee), by entering into or
accepting this agreement, each Certificateholder, by accepting a
Certificate, and the Indenture Trustee and each Noteholder or Note
Owner, by accepting the benefits of this Agreement, hereby acknowledges
and agrees that such Person has no right, title or interest in or to
the Other Assets of the Seller. To the extent that, notwithstanding the
agreements and provisions contained in the preceding sentence, each of
the Owner Trustee, the Indenture Trustee, each Noteholder or Note Owner
and the Certificateholder either (i) asserts an interest or
28
claim to, or benefit from, Other Assets, or (ii) is deemed to have any
such interest, claim to, or benefit in or from Other Assets, whether by
operation of law, legal process, pursuant to applicable provisions of
insolvency laws or otherwise (including by virtue of Section 1111(b) of
the Bankruptcy Code or any successor provision having similar effect
under the Bankruptcy Code), then such Person further acknowledges and
agrees that any such interest, claim or benefit in or from Other Assets
is and will be expressly subordinated to the indefeasible payment in
full, which, under the terms of the relevant documents relating to the
securitization or conveyance of such Other Assets, are entitled to be
paid from, entitled to the benefits of, or otherwise secured by such
Other Assets (whether or not any such entitlement or security interest
is legally perfected or otherwise entitled to a priority of
distributions or application under applicable law, including insolvency
laws, and whether or not asserted against the Seller), including the
payment of post-petition interest on such other obligations and
liabilities. This subordination agreement will be deemed a
subordination agreement within the meaning of Section 510(a) of the
Bankruptcy Code. Each of the Owner Trustee (in its individual capacity
and as the Owner Trustee), by entering into or accepting this
agreement, each Certificateholder, by accepting a Certificate, and the
Indenture Trustee and each Noteholder or Note Owner, by accepting the
benefits of this Agreement, hereby further acknowledges and agrees that
no adequate remedy at law exists for a breach of this Section and the
terms of this Section may be enforced by an action for specific
performance. The provisions of this Section will be for the third party
benefit of those entitled to rely thereon and will survive the
termination of this Agreement.
SECTION 11.9. Information Request. Owner Trustee shall provide any
information in its possession reasonably requested by the Servicer, the Issuer,
the Seller, the Residual Interestholder or any of their Affiliates, in order to
comply with or obtain more favorable treatment under any current or future law,
rule, regulation, accounting rule or principle.
SECTION 11.10. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
[Remainder of Page Intentionally Left Blank]
29
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers hereunto duly authorized as of
the day and year first above written.
Wilmington Trust Company
By: /s/ XXXXX X. XXXXXXXX
Name: Xxxxx X. Xxxxxxxx
Title: Financial Services Officer
Trust Agreement
S-1
BAS SECURITIZATION LLC
By: /s/ XXXXX X. XXXXXX
Name: Xxxxx X. Xxxxxx
Title: Principal Financial Officer
Trust Agreement
S-2
EXHIBIT A
FORM OF CERTIFICATE
NUMBER 100% BENEFICIAL INTEREST
R-____
BANC OF AMERICA SECURITIES AUTO TRUST 2005-WF1
CERTIFICATE
Evidencing the 100% beneficial interest in all of the assets of the
Issuer (as defined below), which consist primarily of motor vehicle receivables,
including motor vehicle retail installment sales contracts and/or installment
loans that are secured by new and used automobiles, light-duty trucks and
motorcycles.
(THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF
BAS SECURITIZATION LLC, BANK OF AMERICA, NATIONAL ASSOCIATION OR ANY OF THEIR
RESPECTIVE AFFILIATES, EXCEPT TO THE EXTENT DESCRIBED BELOW.)
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR
ANY OTHER APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE OR OTHER
JURISDICTION, AND MAY NOT BE RESOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT IN COMPLIANCE WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR
ANY OTHER APPLICABLE SECURITIES OR "BLUE SKY" LAWS, PURSUANT TO AN EXEMPTION
THEREFROM OR IN A TRANSACTION NOT SUBJECT THERETO.
THIS CERTIFIES THAT _______________________________ is the registered
owner of a 100% nonassessable, fully-paid, beneficial interest in the Trust
Estate of
BANC OF AMERICA SECURITIES AUTO TRUST 2005-WF1, a Delaware statutory
trust (the "Issuer") formed by BAS Securitization LLC, a Delaware limited
liability company, as depositor (the "Seller").
The Issuer was created pursuant to a Trust Agreement dated as of May
18, 2005 (as amended and restated as of July 7, 2005, the "Trust Agreement"),
between the Seller and Wilmington Trust Company, as owner trustee (the "Owner
Trustee"), a summary of certain of the pertinent provisions of which is set
forth below. To the extent not otherwise defined herein, the capitalized terms
used herein have the meanings assigned to them in the Sale Agreement, dated as
of July 7, 2005, between the Seller and the Issuer as the same may be amended or
supplemented from time to time.
This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the
holder of this Certificate by virtue of the acceptance hereof assents and by
which such holder is bound. The provisions and conditions of the Trust Agreement
are hereby incorporated by reference as though set forth in their entirety
herein.
A-1
The holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders and the Holder of the Revolving Liquidity Note as
described in the Indenture, the Sale Agreement and the Trust Agreement, as
applicable.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
By accepting this Certificate, the Certificateholder hereby covenants
and agrees that prior to the date which is one year and one day after payment in
full of all obligations of each Bankruptcy Remote Party in respect of all
securities issued by the Bankruptcy Remote Parties (i) such Person shall not
authorize such Bankruptcy Remote Party to commence a voluntary winding-up or
other voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to such Bankruptcy Remote Party or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect in any
jurisdiction or seeking the appointment of an administrator, a trustee,
receiver, liquidator, custodian or other similar official with respect to such
Bankruptcy Remote Party or any substantial part of its property or to consent to
any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against such
Bankruptcy Remote Party, or to make a general assignment for the benefit of any
party hereto or any other creditor of such Bankruptcy Remote Party, and (ii)
such Person shall not commence or join with any other Person in commencing any
proceeding against such Bankruptcy Remote Party under any bankruptcy,
reorganization, liquidation or insolvency law or statute now or hereafter in
effect in any jurisdiction.
This Certificate may not be acquired by or for the account of or with
the assets of (a) an employee benefit plan (as defined in Section 3(3) of ERISA)
that is subject to the provisions of Title I of ERISA, (b) a plan described in
Section 4975(e)(1) of the Code or (c) any entity whose underlying assets include
plan assets by reason of an employee benefit plan's or other plan's investment
in the entity (each, a "Benefit Plan"). By accepting and holding this
Certificate, the holder hereof shall be deemed to have represented and warranted
that it is not a Benefit Plan and is not purchasing on behalf of a Benefit Plan.
It is the intention of the parties to the Trust Agreement that, solely
for federal, state and local income and franchise tax purposes: (1) if there is
one beneficial owner of the Certificates, the Issuer shall be treated as a
disregarded entity, and (2) if there is more than one beneficial owner of the
Certificates, the Issuer shall be treated as a partnership for income and
franchise tax purposes, with the assets of the partnership being the Receivables
and other assets held by the Issuer, the partners of the partnership being the
Certificateholders, and the Notes and the Revolving Liquidity Note being debt of
the partnership.
By accepting this Certificate, the Certificateholder acknowledges that
this Certificate represents a beneficial interest in the Issuer only and does
not represent interests in or obligations of the Seller, the Servicer, the Owner
Trustee, the Indenture Trustee or any of their respective
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Affiliates and no recourse may be had against such parties or their assets,
except as expressly set forth or contemplated in this Certificate, the Trust
Agreement or any other Transaction Document.
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IN WITNESS WHEREOF, the Issuer has caused this Certificate to be duly
executed.
BANC OF AMERICA SECURITIES AUTO
TRUST 2005-WF1
By: Wilmington Trust Company, not in its
individual capacity, but solely as Owner
Trustee
Dated: By:
---------------- --------------------------------
Name:
Title:
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OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust
Agreement.
Wilmington Trust Company, not in its
individual capacity but solely as Owner
Trustee
By:
---------------------------------
Authenticating Agent
By:
---------------------------------
Authorized Signatory
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